A provision in the U.S. National Defense Authorization Act of 2013(NDAA 2013) – which was signed into law by President Obama on January 2, 2013 – will strengthen whistleblower rights for U.S. police officers who work in United Nations (UN) peacekeeping missions. Specifically, all police officers stationed in peacekeeping missions who work for a State Department contractor, such as DynCorp and PAE Group, will now have best practice protections against retaliation and more robust mechanisms through which to enforce these rights. This law temporarily fixes a gaping accountability loophole in which U.S. police officers who reported sexual exploitation and abuse, human trafficking, and other appalling misconduct in the peacekeeping missions lacked credible channels through which to challenge subsequent retaliation by their employer.
Although the United Nations encourages officers to report misconduct, it doesn’t protect them if they are retaliated against for having done so: that job is left to the police officer’s country of origin. But the U.S. supplies its officers through private government contractors, many of which have created systems that allow them to evade legal accountability. Some of these companies: are incorporated outside the U.S. (i.e. in the United Arab Emirates and Singapore); coerce employees into signing contracts governed under the laws of the foreign jurisdiction; and require the whistleblower to waive his or her right to sue in U.S. courts. This architecture of impunity has made it difficult for U.S. whistleblowers who expose misconduct in UN peacekeeping missions to challenge retaliation.
The new law temporarily closes these loopholes by creating permanent rights for defense contractors and a four-year pilot program in which all other U.S. government contractor whistleblowers will be given best practice free speech rights. Among other things, section 828 of the law:
- Allows U.S. contractor whistleblowers from the peacekeeping missions to file retaliation complaints with the State Department Office of Inspector General (OIG), which then must conduct an investigation and make recommendations to the Secretary of State. If the Secretary fails to provide requested relief within 210 days, the whistleblower may go to federal district court for de novo proceedings and have the case decided through a jury trial.
- Applies the pro-employee Whistleblower Protection Act legal burdens of proof to determine who wins the lawsuit or prevails in the OIG investigation.
- Entitles whistleblowers who win with make “whole” relief, including compensatory damages without caps.
- Extends protections to whistleblowers harassed or fired by a contractor at the government’s direction.
- Prohibits any cancellation of rights and remedies through job prerequisites or other agreements.
- Mandates that all affected employers must provide all contractor employees with written notice of these new rights and remedies.
The law requires that all new contracts after July 1, 2013 incorporate these whistleblower rights. Preexisting contracts after that date also must be updated with these rights whenever there are major contract modifications.
Several U.S. whistleblowers from peacekeeping missions have claimed that they were retaliated against as a result of their disclosures. Most notably, American whistleblower Kathryn Bolkovac – who served as an International Police Task Force human rights investigator in Bosnia – was terminated after she discovered that UN police officers were involved in gross wrongdoing, including human trafficking and forced prostitution. Her story was subsequently depicted in the novel and movie “The Whistleblower.” Bolkovac successfully sued her employer, DynCorp, in Great Britain for unfair dismissal. But, after losing that case, DynCorp moved its legal jurisdiction to the United Arab Emirates, making it extremely difficult for future whistleblowers to challenge retaliation. DynCorp subsequently became the State Department’s largest contractor.
In September 2012, GAP released a report finding that UN civilian police officers and police officers throughout the world were afraid to speak up about misconduct. As one UN police officer told us “people are afraid to speak up because they will be sent home. They know things are wrong here, but you’re better off not saying anything.” This law addresses some of the concerns raised in that report.
But although the new law will strengthen rights for UN police officers from the U.S. who are retaliated against by a contractor or the government, it will not explicitly protect them from retaliation by the United Nations itself – only by the contractor. The provisions against third party-directed retaliation only specify U.S. government pressure. Test cases will determine if U.S. contractors can pass the buck by saying the UN pressured them to retaliate against their whistleblowers. The new law also does not apply retroactively, so those who were retaliated against prior to its passage will not be covered. Nor does the law apply to police officers or peacekeepers from other countries. These people – as well as victims – are not currently protected by the UN whistleblower protection policy and continue to have few, if any, rights when they disclose misconduct committed by UN troops. GAP has urged the United Nations to strengthen its whistleblower policy to close some of these loopholes, but the organization has yet to take action.
In the meantime, GAP applauds the U.S. Congress for passing this law, which will ultimately benefit not only whistleblowers, but also the taxpayers who foot the bill for these peacekeeping missions.
Shelley Walden is International Officer for the Government Accountability Project, the nation’s leading whistleblower protection and advocacy organization.